An employee of the U.S. Commission on Civil Rights filed an EEO complaint, alleging discrimination and a hostile work environment based on race, sex, and reprisal culminating in her termination. The agency accepted the employee’s reprisal claims, but dismissed her other claims of discrimination. The agency properly notified the employee that the dismissal decision was not immediately appealable, but could be reviewed by an EEOC administrative judge if she requested a hearing after either the completion of her investigation or the passing of 180 days since her filing.
After the investigation, the employee requested a hearing and requested review of the dismissed claims by the administrative judge. The agency then issued a final decision regarding the partially dismissed claims, confirming its dismissal of the claims.
The EEOC held that the agency’s issuance of the final decision was improper because the complainant had already requested a hearing, removing the agency of its authority to issue the dismissal decision. Furthermore, the administrative judge could review the dismissed issues because the complaint pending before the administrative judge was subjected to the partial dismissal. See Moore v. U.S. Commission on Civil Rights, 103 FEOR 234 (EEOC OFO 2003). The agency had no authority to issue a final decision on the dismissed issues, or the accepted issues, EEOC held. As soon as the employee requested a hearing by an administrative judge, the agency was divested of its authority to issue a final decision and the matter was to be considered under review by the administrative judge.
Thus, agencies cannot treat an employee’s request for hearing and review of dismissed issues as a request for a final appeal decision under 29 C.F.R.